Karnataka High Court
Sri K Krishnayya Acharya vs K Srinivasa Acharya on 27 February, 2024
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RSA No. 767 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 767 OF 2013 (PAR)
BETWEEN:
SRI K KRISHNAYYA ACHARYA
S/O LATE SHIVAPPA ACHARYA
AGED 58 YEARS
RESIDING AT GUNDIHITHLU
NEAR KADRI TEMPLE
KADRI VILLAGE
MANGALORE-575002
D.K. DISTRICT
...APPELLANT
(BY SRI. H.S. SHANKAR, ADVOCATE FOR
SRI. ROHITH GOWDA, ADVOCATE)
AND:
Digitally signed 1. K SRINIVASA ACHARYA
by R DEEPA S/O LATE SHIVAPPA ACHARYA
Location: AGED 60 YEARS
HIGH COURT
OF RESIDING AT SRIDEVI KRUPA
KARNATAKA ALAJA CHIBIDRI VILLAGE
BELTHANGADY TALUK
D.K. DISTRICT
2. K JANARDHANA ACHARYA
S/O LATE SHIVAPPA ACHARYA
SINCE DEAD BY HIS LR'S
2(A) SMT. SHOBHA
W/O K. JANARDHANA ACHARYA
AGED ABOUT 52 YEARS
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RSA No. 767 of 2013
2(B) SRI. SUDHAMA
S/O K JANARDHANA ACHARYA
AGED ABOUT 33 YEARS
2(C) SMT. VANI
D/O K JANARDHANA ACHARYA
AGED ABOUT 28 YEARS
2(D) SMT. SHWETHA
D/O K JANARDHANA ACHARYA
AGED ABOUT 26 YEARS
ALL ARE R/AT
KOSAKKADI HOUSE
NEAR KALIKAMBHA TEMPLE
PANJINADAKA POST, MULKI
UDUPI DISTRICT.
3. SMT. VINODHA
W/O KITTANNA ACHARYA
AGED 56 YEARS
R/AT MARANGAYI HOUSE
CHARMADI VILLAGE AND POST
BELTHANGADY TALUK
D.K. DISTRICT
4. GANAPATHY ACHARYA
S/O LATE SHIVAPPA ACHARYA
AGED 50 YEARS
RESIDING AT SUDHAMA NILAYA
ALAJA CHIBIDRI VILLAGE
BELTHANGADY TALUK, D.K. DISTRICT
5. MOAHANA ACHARYA
S/O LATE SHIVAPPA ACHARYA
AGED 49 YEARS
RESIDING AT SUDHAMA NILAYA
ALAJA CHIBIDRI VILLAGE
BELTHANGADY TALUK,
D.K. DISTRICT
...RESPONDENTS
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RSA No. 767 of 2013
(BY SRI. KRISHNAMURTHY D., ADVOCATE FOR R1, R3 AND R5
SRI. MANJUNATH GOWDA, ADVOCATE FOR R2(A-D)
SRI. ANANDA K.V., ADVOCATE FOR R4)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 17.1.2013 PASSED IN
R.A.NO.194/2008 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, BELTHANGADY, D.K., SET ASIDE THE APPEAL FILED
AGAINST THE JUDGEMENT AND DECREE DTD 17.11.2008
PASSED IN OS.NO.82/1998 ON THE FILE OF CIVIL JUDGE
(JR.DN.) AND J.M.F.C., BELTHANGADY, D.K.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant
challenging the judgment and decree dated 17.01.2013,
passed in R.A.No.194/2008 by the Senior Civil Judge &
JMFC, Belthangady, D.K., modifying the judgment and
decree dated 17.11.2008, passed in O.S.No.82/1998 by
the Civil Judge (Jr.Dn.) & JMFC, Belthangady, D.K.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellant is defendant No.2 and respondent No.1 is the
plaintiff and respondents 2 to 5 are defendants No.1, 3, 4
and 5 respectively.
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3. Brief facts leading rise to filing of this appeal are
as under:
Plaintiff filed a suit for partition and separate
possession. It is the case of the plaintiff, that plaintiff and
defendants are the members of Hindu joint family and the
suit schedule properties are the ancestral properties of the
plaintiff and defendants. It is contended that that the
father of plaintiff and defendants i.e., Shivappa Acharya
was the occupant of the suit schedule properties after the
Land Tribunal granted him the said properties. Said
Shivappa Acharya died on 25.07.1988, and their mother
Smt. Sundari died on 17.07.1997. After the death of their
parents, plaintiff and defendants succeeded to suit 'A'
schedule properties. It is contended that suit 'B' schedule
properties was Government land. Father of the plaintiff
during his lifetime, encroached the Government land and
filed several applications before the Government claiming
rights over the same. From the year 1985, the plaintiff is
paying house tax and residing in 'B' schedule properties.
It is contended that 'B' schedule properties stands in the
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name of defendant No.2 as the grant was made in favour
of defendant No.2 for the welfare of the family and not in
his individual capacity. Hence the plaintiff is entitled for
share in 'B' schedule properties. Defendant No.2, taking
undue advantage of the entries in the revenue records in
respect of 'B' schedule properties, is trying to alienate 'B'
schedule properties. The plaintiff requested the
defendants to effect partition, but the defendants refused.
Hence cause of action arose for the plaintiff to file the suit
for partition and separate possession.
4. Defendant No.2 filed written statement admitting
the relationship of plaintiff with the defendants and also
the grant made in favour of his father in respect of 'A'
schedule properties. It is denied that the father of
defendant No.2 encroached 'B' schedule properties in land
bearing Sy.No.83/1 and his father has filed an application
before the Government for grant of 'B' schedule
properties. It is contended that the Government has
granted the said land in favour of defendant No.2 in his
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individual capacity. The plaintiff has no right to claim any
share in 'B' schedule properties and contended that the
plaintiff is residing in 'B' schedule properties as a licensee.
On these grounds sought for dismissal of the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1) Whether the plaintiff proves that the suit
properties were granted to K. Shivappa
Acharya in LRY No.16/74-75 dated
29-7-81?
2) Whether the plaintiff proves that after
the death of his mother and father, he
had the defendants are in joint
possession of suit 'A' schedule
properties?
3) Whether the plaintiff proves that his father
had encroached one acre of land in
Sy.No.83/1 of Chibidre village and it is the
B schedule property?
4) Whether the plaintiff proves that a house is
existed in the suit B schedule property and
its door No. is 1-38(1)?
5) Whether the plaintiff proves that the suit B
schedule properties were granted to 2nd
defendant on behalf of the joint family?
6) Whether the plaintiff is entitled for the
partition and separate possession of his
share in the suit A and B schedule
properties by metes and bounds?
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7) Whether the plaintiff is entitle for the relief
sought for in the suit?
8) To what order or decree?
6. In order to prove the case of the plaintiff, the
plaintiff examined himself as PW-1 and got examined two
witnesses as PW-2 & PW-3 and got marked 28 documents
as Exs.P1 to P28. In rebuttal, defendant No.2 examined
himself as DW-1 and got marked 12 documents as Exs.D1
to D12. The trial Court after assessing the oral and
documentary evidence of the parties, answered issue
Nos.1 and 2 in affirmative; issue Nos.3 to 5 in negative;
issue Nos.6 and 7 partly in affirmative; and issue No.8 as
per the final order. The trial Court decreed the suit in part
only with respect of 'A' schedule properties. It is further
ordered and decreed that the plaintiff is entitled for 1/6th
share for partition and separate possession in suit 'A'
schedule properties by metes and bounds and defendants
No.3 and 5 are entitled for 1/6th share in suit 'A' schedule
properties. It is further ordered and decreed that
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defendant No.4 is also entitled for 1/6th share in the suit
'A' schedule properties.
7. The plaintiff aggrieved by the dismissal of the suit
in respect of 'B' schedule properties, filed an appeal in
R.A.No.194/2008. The First Appellate Court, after hearing
the parties, has framed the following points for
consideration:
1) Whether the appellant proves that
impugned judgment and decree of the Trial
Court passed in O.S.82/1998 is contrary to
law, facts, illegal perverse and probabilities
of the case and as such same is liable to be
interfered with?
2) What order?
8. The First Appellate Court, on re-assessing the oral
and documentary evidence, answered point No.1 in
affirmative and point No.2 as per the final order and
allowed the appeal filed by the plaintiff and set aside the
dismissal of the suit in respect of 'B' schedule properties.
Accordingly, the suit of the plaintiff was decreed in respect
of both 'A' and 'B' schedule properties and ordered that
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the plaintiff is entitled for 1/6th share in suit 'A' and 'B'
schedule properties by metes and bounds and further
ordered and decreed that defendants No.3 & 5, and
defendant No.4 are also entitled for 1/6th share in suit 'A'
and 'B' schedule properties. The defendant No.2,
aggrieved by the judgment and decree passed by the First
Appellate Court in decreeing the suit in respect of 'B'
schedule property, has filed this second appeal.
9. This court admitted the appeal on the following
substantial question of law :
1) Whether the Lower Appellate Court is
justified in reversing the judgment and
decree of the trial Court and granting 1/6th
share in 'B' schedule property when Ex.D3
clearly indicates that it was granted to
defendant No.2 exclusively?
2) Whether the Lower Appellate Court is
justified in reversing the judgment and
decree of the trial Court when the plaintiff
has not proved by producing any
documentary evidence on record that 'B'
schedule property is also the joint family
property?
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10. Heard learned counsel for defendant No.2. None
appears on behalf of the plaintiff.
11. Learned counsel for defendant No.2 submits that
'B' schedule properties were granted in favour of
defendant No.2 in his individual capacity and not for the
benefit of the family. He submits that the plaintiff was
permitted to stay in 'B' schedule properties and possession
of the plaintiff is permissive possession and he submits
that the First Appellate Court committed an error in
granting share in 'B' schedule properties and he further
submits that the PW-1 has admitted that the said land was
granted in favour of defendant No.2 and the First
Appellate Court without considering the admission of PW-
1, has passed the impugned judgment which is perverse
and arbitrary. On these grounds prays to allow the
appeal.
12. Perused the records and considered the
submissions of learned counsel for defendant No.2.
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13. SUBSTANTIAL QUESTIONS OF LAW NO.1 & 2:
Since these questions are interlinked with each other, they
are taken together for common discussion in order to
avoid repetition of facts. The dispute involved in the
present appeal is only in respect of 'B' schedule properties.
It is the case of the plaintiff that Shivappa Acharya was in
possession of 'B' schedule properties illegally and he
submitted application for regularization of his possession
in respect of 'B' schedule properties. The said application
came to be rejected. After the demise of said Shivappa
Acharya, defendant No.2 filed an application for
regularization of his possession. The said application came
to be allowed by the revenue authorities and the said land
was granted in favour of defendant No.2 for the benefit of
joint family. It is contended that 'B' schedule properties
are also joint family properties of plaintiff and defendants
and defendant No.2 alone has no right, title or interest
over the suit schedule properties. The plaintiff demanded
for partition and separate possession in respect of 'A' and
'B' schedule properties, but the defendants denied to
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effect partition. The plaintiff in order to prove his case,
examined himself as PW-1 and he has reiterated the plaint
averments in his examination-in-chief. In support of his
claim, plaintiff has produced documents. Ex.P1 is the RTC
extract which discloses that the land bearing Sy.No.29/2
stands in the name of defendant No.2; Ex.P2 is the RTC
extract in respect of land bearing Sy.No.30/2 which
discloses that the said land stands in the name of
defendant No.1, plaintiff and defendant Nos.2 and 3 for
the year 1997-98; Ex.P3 is the RTC extract in respect of
land bearing Sy.No.83/1a3 which discloses that the said
land stands in the name of defendant No.2 for the year
1997-98; Ex.P4 is the RTC extract in respect of land
bearing Sy.No.83/1a4 which discloses that the said land
stands in the name of defendant No.2 for the year 1997-
98; and Ex.P5 is the RTC extract in respect of land bearing
Sy.No.83/1a7 which discloses that the said land stands in
the name of defendant No.2 for the year 19997-98; Ex.P6
is the certified copy of the order of Land Tribunal which
discloses that the Land Tribunal granted lands bearing
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Sy.No.29/2 and 30/2 in favour of Shivappa Acharya; Ex.P7
is the copy of Form No.10 which discloses that the land
bearing Sy.No.29/2 and 30/2 was granted in favour of
Shivappa Acharya i.e., father of plaintiff and defendants;
Ex.P8 is the copy of death certificate of Shivappa Acharya
who died on 25.07.1988; Ex.P9 is the copy of death
certificate of mother of plaintiff who died on 17.07.1997;
Ex.P10 is the saguvali chit issued by the Government in
favour of father of plaintiff; Ex.P11 and Ex.P12 are the
certificates issued by the Secretary, Charmady Gram
Panchayat; Ex.P13 is the copy of letter addressed to
Forest Department; Ex.P14 is the copy of notice issued by
Forest Department; Ex.P15 is the copy of legal notice
issued by defendant No.2 to the plaintiff; Ex.P16 is the
reply to Ex.P15; Ex.P17 is the postal acknowledgment;
Ex.P18 is the copy of registered sale deed; Exs.P19 to P27
are the tax paid receipts; Ex.P28 is the endorsement
issued by the Tahsildar. During the course of cross-
examination, a suggestion was made to PW-1 that 'B'
schedule properties were granted to defendant No.2. The
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said suggestion was denied by PW-1. Except the said
suggestion, nothing has been elicited from the mouth of
this witness.
14. Further, plaintiff has examined one Narayana
Shetty as PW-2 who has deposed that he knows the
plaintiff and defendants and the land bearing Sy.No.83/1
to an extent of 1 acre was in the possession of Shivappa
Acharya during the year 1953 and Shivappa Acharya
fenced the property and constructed a thatched hut and
planted cashew, coconut and banana trees. In the year
1985, plaintiff had demolished the hut and constructed a
tiled roof house and residing there and said land was
granted in favour of defendant No.2 on behalf of the joint
family as Shivappa Acharya had filed application for grant
of said land and defendant No.2 is residing at Mangalore
and working as a tailor. Plaintiff has also examined PW-3
who has deposed in the same line of PW-2.
15. From the perusal of the documents produced by
the plaintiff, it discloses that the father of plaintiff i.e.,
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Shivappa Acharya was in possession of both 'A' and 'B'
schedule properties as per Ex.P1 to Ex.P5 and further
Shivappa Acharya filed Form No.10 in respect of 'A'
schedule properties and the Land Tribunal granted
occupancy right in respect of 'A' schedule properties and
Form No.10 was issued in favour of Shivappa Acharya.
Shivappa Acharya died leaving behind the plaintiff and
defendants as his legal heirs.
16. In rebuttal, defendant No.2 examined himself as
DW-1 and he admits his relationship with the plaintiff and
also Shivappa Acharya. He has also deposed that 'A'
schedule properties were granted to Shivappa Acharya in
the year 1981. Insofar as 'B' schedule properties are
concerned, defendant No.2 is in possession of the same
and Akrama Sakrama Committee granted the said land in
favour of defendant No.2 on 16.12.1996, and the RTC
stands in the name of defendant No.2 and he has
constructed a house in 'B' schedule properties and hence
he is the absolute owner of 'B' schedule properties and the
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plaintiff has no right to claim any share in 'B' schedule
properties. Further in support of his evidence, defendant
No.2 got marked Exs.D1 to D12. Ex.D1 is the resolution
passed by the Gram Panchayat on 01.12.2007; Ex.D2 is
the letter of Range Forest Officer to the Tahsildar; Ex.D3 is
the statement of defendant No.2 before the Revenue
Inspector; Exs.D4 and D5 are the copy of sketch and
proceedings of Akrama and Sakrama Committee; Ex.D6 is
the land revenue receipts; Exs.D7 and D8 are the notices
issued by the Tahsildar to defendant No.2; Ex.D9 is the
counterfoil of the challan; Exs.D10 to D12 are the RTC
extracts of 'B' schedule properties.
17. On consideration of the pleadings, evidence and
documents on record, it is admitted that 'A' schedule
properties were granted in favour of Shivappa Acharya.
Insofar as 'B' schedule properties are concerned, it is the
case of defendant No.2 that he had submitted an
application before the Akrama Sakrama Committee on the
ground that he was in unauthorized occupation of the
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forest land and Akrama Sakrama Committee has passed a
resolution granting the said land in favour of defendant
No.2. Learned counsel for defendant No.2 has suggested
to PW-1 that his father has submitted an application in
respect of Sy.No.83/1 and the said application came to be
rejected. The said suggestion itself is sufficient to hold
that Shivappa Acharya was in possession of the suit 'B'
schedule properties prior to his death. After his death,
defendant No.2 continued the possession of the suit 'B'
schedule properties for and on behalf of the family.
Further, defendant No.2 made a statement before the
revenue authorities as per Ex.D3 which clearly states that
he is residing with his wife, mother, brother and their
children. The First Appellate Court has extracted the same
in para-15 of the impugned judgment which clearly
discloses that 'B' schedule properties were granted to
defendant No.2 on behalf of the joint family. Further,
during the pendency of the suit, defendant No.2 got issued
legal notice to the plaintiff as per Ex.P15 which reads as
under:
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"You are aware that you have filed
O.S.No.82/98 on the file of Civil Judge (Jr.Dn.) of
Belthangady Taluk, alleging that you are entitled
to 1/6th share in suit schedule properties. The
said suit filed by you is pending before the
Hon'ble Court.
In the said suit you have stated that
yourself and defendants are in joint possession
and enjoyment of suit schedule properties. This
version of yours is totally false and self created
one. In fact from the death of Shivappa Acharya
in the year 1988, the father of yourself and
defendant you have enjoying the suit schedule
property as an exclusive owner to the detrimental
of the interest of other co-sharers. You have
been using the usufructs derived from the
property for yourself with the full knowledge that
it belongs to each co-sharers. You are plucking
arecanuts and selling them in the market. Per
year the income of arecanuts is Rs.25,000/- to
Rs.30,000/-. It may not be out of place to
mention here that my client has spent huge
amounts for improvement of the property but you
are using the usufructs as an exclusive owner.
Further, I am instructed to state that you
have plans to demolish the house belonging to
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the family for the purpose of renovating. This act
of yours is illegal as the suit for partition filed by
you is pending before the Court."
18. From the perusal of Ex.P15, defendant No.2 has
clearly admitted that the plaintiff and defendants are
jointly in the enjoyment of the suit schedule properties as
exclusive owners and further the First Appellate Court
placing reliance on Exs.D3 and P15 has held that 'B'
schedule properties are also the joint family properties of
plaintiff and defendants and the plaintiff is entitled for
share in 'B' schedule properties. The First Appellate Court
was justified in recording a finding that 'B' schedule
properties are also joint family properties of plaintiff and
defendants and plaintiff is entitled for share in suit 'B'
schedule properties. The First Appellate Court has rightly
passed the impugned judgment. Hence, I do not find any
error in the impugned judgment. Accordingly, I answer
substantial questions of law No.1 and 2 in affirmative and
proceed to pass the following:
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ORDER
The appeal is dismissed.
The judgment and decree dated
17.01.2013, passed by the First Appellate Court
in R.A.No.194/2008 by the Senior Civil Judge &
JMFC, Belthangady, D.K., is hereby confirmed.
No order as to the costs.
SD/-
JUDGE
RD
